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Poor Employee Productivity While on Intermittent FMLA New Jersey

Hi all. We have an ee who has intermittent FML to handle appointments for a family member's serious illness. She is out maybe one full day and 2-3 partial days each week. Problem is, ever since she got intermittent FMLA status, her work performance while at work, has deteriorated. Any attempt by the supervisor to appropriately address the performance problems results in the ee running to HR crying, saying that she's feeling pressured and harassed because she is on FML. I am over this person's dept but not her direct supervisor.

Her time off for FML is now unpaid time, since she's nonexempt and she's used up her PTO (what she accrues each week gets eaten up quickly). If she works 3 hours one day and 4 hours another day, she still insists on a one-hour paid lunch break, and she only does enough to account for maybe an hour's worth of work, tops. For example, if she is wokring 3 hours on a given day, she might complete one brief assignment, but not the others (which could have easily been completed in under 3 hrs), and then she claims that "she knows her rights" and since she's on FML, we have to get someone else to cover the things she cannot get to.

I have questioned the one-hour paid lunch thing. Our company, by history, is very generous with meal breaks and all employees, whether exempt or nonexempt, get an hour paid lunch when they work a full day (many of us don't use the whole hour because we have a lot to do). This employee is hourly and might work a half day, 4 hours, with 4 hrs FML. But she will only stay in the office 3 hours, and take a one-hour lunch before going to her family member's appointments. So we're paying her an hour to not work. Her supervisor was frightened about addressing this, because the ee said that since everyone else gets a paid lunch hour, we'd be illegally discriminating against her if we didn't give it to her, and that the fact that she's not there 8 hours that day is not her fault but related to the family member's illness, and she's protected by FMLA.

I'm just feeling like this ee is now "untouchable" because of the intermittent FML, and everyone is leery about any corrective actions with her. She's at the point where any other employee would be written up. But with this ee, even sitting down and having a documented discussion about productivity expectations results in her bursting into tears and saying we're violating her rights and retaliating against her for her FML.

Any similar experiences? Any guidance? I know that on paper, and in this forum, the easy answer is that we can and should still hold her accountable for productivity & performance problems. But in the real world, companies tend to be very afraid about doing this with people who have rung the FMLA bell. Even when we get HR on board with disciplining someone when they've had a recent FML, the employment lawyers who advise HR say we're better off not doing the discipline in any proximity to the leave, since any court will interpret it as retaliation just by virtue of the timeframe being close to the FML time.

So how do you prevent a person who uses FML from getting "diplomatic immunity" from any accountability?

Understandable that she is stressed and I understand why you are treating this case with kid gloves. I would too, to a point. It is hard to advise when I'm not entirely sure what she does or where/how, but I'll give it my best shot. Instead of benchmarking against what she used o do or what others might have done, I'd start with what the company needs to have accomplished. If that is X reports a day/week/month, start there. I wouldn't start implementing new check in systems or checklists. That doesn't mean you can't have a frank and compassionate talk about what level of productivity you need from her and what assistance she might need from you in order to meet it. If you approach it from a problem solving standpoint rather than as an accusation, it should go much better. Maybe she does need entended leave for a few weeks. Maybe there is something the company can do short term to help her get the work done (laptop, flexible hours, etc.). As much as possible, keep it focused on the business and not her personal situation or personal attributes.

"I sympathize with your situation and I know you are going through a rough time. You have been approved for FMLA and while there is no problem at all with you taking the time you need, we do need to discuss how handle the workload. Looking at the business side of things, we need a minimum of X reports a week. What can we do to support you and allow you to meet that goal?"

If you have an EAP, I would offer it.

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What makes this hard, is that this particular employee is in a position where she's the only person in the company with that position, so there are no comparable employees to benchmark her productivity against. We can really only hold her to the standard that she previously set herself. She was never terribly productive, certainly would never be accused of being a workaholic, but she certainly met minimum/average standards.

We really are not able to directly supervise her, by now I share your concerns about what she does during the workday. We invented her position because we needed someone based in this other location, about an hour away, to complete the tasks she performs. She meets with her supervisor weekly and has daily phone and e-mail contact. Her work products were really the only proof we had of her productivity. Those products (reports, etc) have definitely decreased much more than her working hours have.

The problem is that is any other employee showed a decrease in productivity, they'd be counseled, advised, and if they did not improve, there'd be some disciplinary action. But she coincided her drop in productuvity with her intermittent FML. So now any attempt to address the productivity could be interpreted as being related to her FML. Like if we gave her a daily checklist of tasks to complete, or a formal list of priorities, and then made her check in at the end of each day, she could come back and say "You never made me do this before I took FML! This MUST be related to my taking FML!"

I guess if I go back to the last year when she was still full time, and maybe graphed the number of reports she completed per hour, per day, or per week, and compared it to her recent productivity, that could work. (But I'm sure she'll still say "you never did this to me before! I'm feeling threatened!" )

That's her new quote she runs to HR with: "I'm feeling threatened!" With lots of tears and sobbing.

I try not to get sidetracked by the "waterworks," and I really believe that she's truly that upset (she's not faking the crying or doing it on purpose). I really think she's just breaking down under the pressure of her child possibly dying. I am human, and I know she's incredibly stressed about her child, and worried about the life-threatening condition. But if she's so fragile right now, I keep thinking maybe she should just stop working and give her family 100% of her attention. She is not the only breadwinner in her family and she makes very little money anyway. Of course I can't say that though.

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I've dealt with this not infrequently. If the tasks are trackable, it makes it much easier. The Supervisor and perhaps, someone from HR needs to sit down with her and be very clear about the expectations given her "new" hours. If you have another employee who works part time to compare productivity to, that will help. Don't use names, but showing what should and can be accommplished in X hours helps. FMLA requires you treat her as any other employee not taking leave. i would not get sidetracked by the tears and threats. If the waterworks start, allow her a few minutes to go to the restroom and get herself together, then resume the conversation. If she starts threatening to sue, stay firm and reiterate that her leave is not the issue but her performance is. Remind her that when at work, she is still expected to perform to the best of her ability and you are expecting her to produce the same amount of work as anyone else who worked the same number of hours she does.

I do wonder what she is doing while at work if not working. Sounds like her supervisor need to be doing more supervising.

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We would never expect her to complete 40 hours (actually 35 hours) worth of work in the 21-ish hours she works each week. I just want the hours worked (and paid for) to be productive. Yes, all of her assigned tasks, aside from responding to staff questions, result in documentation, so they are trackable.

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If you don't pay others an hour lunch who take a partial day off (for whatever reason), then you wouldn't be required to pay her for the hour lunch. That's the easiest part to state/uphold.

I feel for you on the performance issues.

While I understand not wanting to deal with a possible lawsuit, many courts are finding that performance issues can be taken care of (discipline up to termination) while an employee is under protected FMLA. The standards have to be reasonable (i.e. you can't expect the employee to get all the prior 40 hr/wk work completed) and you should adjust expectations in writing appropriately. Once you do that, you have something to compare performance to. And can use that to discipline/terminate.

I'm not sure the courts meant to say that employees get to, in essence, cherry pick one assignment to do every day. I know that when I was using intermittent FMLA to care for my grandmother, I worked like a demon when I was in the office to minimize the effects of my leave on the rest of my department.

If the rule is that you get an hour paid lunch when you work a full day, it's not discriminating against her if she is held to the same rule as everyone else. I would assume that an employee who takes a half day to attend a parent-teacher conference wouldn't expect to get an hour of paid lunch, would they?

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